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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 960 ..

particular section relating to a particular right to persons “from birth”. It did nothing more; it did nothing less.

So this is still an open question, as the Chief Minister has admitted today. Nor shall we, in voting on the legislation before us today, decide the question of when life begins. We are simply debating the extension of the protection of an existing provision to cover acts or reckless omissions other than those in relation to childbirth.

The bill rectifies an unintended consequence of the passage of the Crimes (Abolition of Offence of Abortion) Bill in 2001. The claim of that bill was to allow a medical practitioner to terminate an unwanted pregnancy with the consent of the pregnant woman in an approved facility. I can say with a fairly high degree of certainly that it was not intended to allow third parties deliberately, or through reckless indifference, to kill or harm a foetus through acts of violence occurring, needless to say, without the consent of the mother. Yet that is the effect.

Even under the previously existing provisions of the Crimes Act this protection was ineffective in practice. This was possibly a consequence of the general reluctance to prosecute those procuring abortions, and that extended to other offences. Even at the theoretical level this protection was incomplete. It protected the unborn from destruction but not from lesser harm. This legislation extends the coverage, analogously with the “Childbirth—grievous bodily harm” provisions in the existing Crimes Act, to prohibit deliberate or reckless harm as well as destruction.

Whether we recognise it or not, the abortion issue—which this is not—is about resolving conflicting claims of the foetus and its mother. This conflict has been resolved by the Assembly already. But here there is no such conflict. The interests of the mother and child are the same. The only question is whether we think those joint interests outweigh the interest in avoiding the consequences of their actions or reckless negligence of muggers, burglars, rapists; drunk, negligent or road rage affected drivers; and violent spouses.

Which claims will we support today—those of the mother and child or those of violent criminals? Would anyone in this place look into the eyes of Renee Shields—mother of Byron Shields who, according to the Daily Telegraph on 26 June 2003, died in November 2001 after his parents’ car was rammed into a pole by a road rage driver—and tell her that she lost nothing of value?

MS MacDONALD (11.53): Mr Speaker, Mr Pratt’s bill will create a dichotomy between mother and foetus in the context of the Crimes Act 1900. A pregnant woman will become two separate legal parts of the same person: a woman and a new legal personality—the unborn child. The creation of a legal dichotomy between mother and foetus has the potential to cause new legal and policy problems, especially for the rights of women, as demonstrated in the United States.

Rather than attempt to create a division between mother and foetus, the government advocates a solution that respects and supports the victim. Rather than attempt to create a division in the community, the government advocates a solution that respects everyone’s spiritual, ideological or political point of view.

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